Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
6
Case 1:06-cv-00245-MP-AK Document 6 Filed 12/14/2006 Page 1 of 3
Page 1 of 3
RODRIQUEZ BROWN,
Petitioner,
v. CASE NO. 1:06-cv-00245-MP-AK
JAMES MCDONOUGH,
Respondent.
___________________________/
This matter is before the Court on Doc. 1, Petition for Writ of Habeas Corpus, filed by
Rodriguez Brown. In the interest of judicial economy, the Court has granted Petitioner leave to
proceed IFP. The original petition is not signed or dated but was provided to prison officials on
Petitioner pled guilty to five counts of robbery and was sentenced on November 28,
2001, to 15 years imprisonment as a prison releasee reoffender. Id. According to his petition, he
did not appeal, and thus, the conviction became final on December 28, 2002. Fla. R. App. P.
9.110(b). On August 15, 2005, Petitioner filed a Rule 3.800 motion to correct illegal sentence in
the lower court. Id. The motion was denied and affirmed on appeal on June 12, 2006. Id.;
Brown v. State, 922 So.2d 195 (Fla. Dist. Ct. App. 2006).
Dockets.Justia.com
Case 1:06-cv-00245-MP-AK Document 6 Filed 12/14/2006 Page 2 of 3
Page 2 of 3
From the date that Petitioner’s conviction became final, he had one year to seek federal
habeas review of his conviction, or December 28, 2003. 28 U.S.C. §2244(d)(1)(A). As the
instant petition was not filed until November 27, 2006, almost three years out of time, Petitioner
clearly missed the filing deadline, and nothing he did in state court after the expiration of the
statute of limitations serves to revive the time for filing here. See Moore v. Crosby, 321 F.3d
1377, 1381 (11th Cir. 2003) (tolling provisions do not restart statute of limitations once
limitations period has expired); Tinker v. Moore, 255 F.3d 1331, 1333 (11th Cir. 2001), cert.
denied, 534 U.S. 1144 (2002). In other words, the time for filing the instant petition had expired
before Petitioner filed his post-conviction motion in state court on August 15, 2005, and the
filing of that motion could not toll a statute of limitations that had already expired. It is of no
consequence that the State statute allows a prisoner two years to seek post-conviction relief, as
Though the time for filing a § 2254 petition may be equitably tolled under certain
tolling. See Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999) (to qualify for
equitable tolling, petitioner must show extraordinary circumstances that are both beyond his
control and unavoidable even with diligence); see also Akins v. United States, 204 F.3d 1086,
In light of the foregoing, it is respectfully RECOMMENDED that the petition for writ of
habeas corpus, Doc. 1, be DENIED AS UNTIMELY, and this cause be DISMISSED WITH
Page 3 of 3
PREJUDICE.
s/ A. KORNBLUM
ALLAN KORNBLUM
UNITED STATES MAGISTRATE JUDGE
A party may file specific, written objections to the proposed findings and recommendations
within 15 days after being served with a copy of this report and recommendation. A party may
respond to another party’s objections within 10 days after being served with a copy thereof. Failure
to file specific objections limits the scope of review of proposed factual findings and recommendations.